In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case.

LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.

CAAF’s daily journal for yesterday, September 7, 2016, has the following entry:

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Criminal Appeals, Appellees. CCA 37679. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on this date.

The deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

September 7 is the 62nd day after July 7.

12 Responses to “Did LaBella miss another deadline?”

  1. Dew_Process says:

    Seriously, how does this happen again in the same case? If anyone would ever appear to be in need of “extraordinary relief,” it would be LaBella!  If there’s anyone out there in AF Appellate Defense land that can shed some factual light on this current issue, we’d all benefit from that.
    This is not “Our Finest Hour” in the MJ system!  :-(

  2. DCGoneGalt says:

    Maybe they used the metric calendar by mistake?

  3. Vulture says:

    Zach.  I think that when you were posting the issue on the first CAAF go round that his lawyer was not potted plant.  Am I to take it that it is not the same person?  This is one of my big problems with issues like this where the lawyers change, seemingly without the Appellant having any control.

  4. Philip Cave says:

    What would happen if the appellate counsel changed the heading of the writ, and resubmitted as a petition for a writ of error coram nobis?

  5. Vulture says:

    It was an error coram nobis.  Judge Stucky asked during oral argument “if we don’t overturn Rodriguez, do you lose?”  Someone needs to come up with a good answer for that.

  6. stewie says:

    What if it was an actual potted plant though?
    Well, Potted Plant, esq.

  7. Dew_Process says:

    @ Vulture – Under Rodriguez (a 3-2 decision as I recall), he loses. But, as I have unsuccessfully argued, Rodriguez is no longer good law (if it ever was), as it flies in the face of SCOTUS’s decisions in Henderson v. Shinseki, 131 S.Ct. 1197 (2011), and U.S. v. Wong, 135 S.Ct. 1625 (2015).
    That being said however, Holland v. Florida, 560 U.S. 631 (2010), may be more persuasive here for LaBella, as in Holland, a habeas deadline in a death penalty case was blown by the “abandonment” of his counsel, the Court found good cause for equitable tolling of the statute’s 1 year deadline.

  8. stewie says:

    I think Rodriquez was wrongly decided, but I do get the potential argument DP that you citing an Article III court (which is technically a court of law and equity) is not the same in this instance as an Article I court (which is technically just a court of law, not a court of equity).
    (Then again, we use equitable principles all of the time, and it’s pretty hard to have justice without it)

  9. anon says:

    Stewie, just food for thought.  Law review article on the constitutionality of another Article I court, the Tax Court, use of equitable powers without specific statutory authority.

  10. Dew_Process says:

    @ Stewie – the issue in Henderson was just that. As SCOTUS noted: ““This case . . . involves review by an Article I tribunal as part of a unique administrative scheme.” The Court concluded that the 120 day statutory limit for seeking review by the U.S. Court of Appeals for Veterans Claims, was not jurisdictional. 131 S.Ct. at 1204.

  11. stewie says:

    well, like I said DP, I think Rodriquez was wrongly decided, but I think that’s the tension at play here.

  12. Vulture says:

    I think that under the circumstances, where the issue of the effectiveness of counsel is under question, the courts of law paradigm is correct to stay under.  The problem is the Congressional testimony saying how its just a few simple steps that an accused had to deal with.  It doesn’t take into account the Personnel Control Facilities and none of that reg is in the record.